Opinion
07-10-1923
SIEBERT v. OHLIGER et al.
Burnett, Sorg & Murray, of Newark, for complainant. Reed & Reynolds, of Newark, for defendants.
Suit to construe will by Herman Siebert, as substituted trustee under the last will and testament of Charles Lawrenz, Sr., deceased, against Mrs. Eliese Ohliger and others. Will construed.
Burnett, Sorg & Murray, of Newark, for complainant.
Reed & Reynolds, of Newark, for defendants.
CHURCH, V. C. This is an action to construe the will of Charles Lawrenz, Sr. The sixth, seventh, and eighth clauses are the ones in dispute and are as follows:
"Sixth. I give and bequeath to my wife Mathilde the nett income of the rest and residue of my estate both real and personal whatever the same may be, or wherever it may be situated during her life, my executors to pay to my wife Mathilde in semi-annual payments, the income of my estate both real and personal after paying all taxes, insurance, assessments, water rents, repairs and all expenses incurred in the maintenance and caring for and managing my estate."
"Seventh. After the death of my wife Mathilde I direct my executors to hold, manage and control my estate both real and personal for the term of five years and to pay the nett income equally divided share and share alike to my said six children, Eliese, Mathilde, Auguste, Anna, Charles and Hedwig. The child or children of any deceased son or daughter to take the parents share."
"Eighth. At the expiration of the said term of five years, I direct my executors to divide the principle of my estate into six equal parts; to pay to my daughters Eliese, Auguste, Anna and Hedwig and my son Charles each one share the remaining sixth part, I direct to be held by my son Charles in trust for my daughter Mathilde wife of Charles B. Woodman, my said trustee to pay the nett income to my daughter Mathilde in semi-annual payments during her life and not required to give bonds, after the death of my daughter Mathilde. I direct my trustee, my son Charles to divide the principal of said share between my children Eliese, Auguste, Anna, Charles and Hedwig share and share alike, the children or child of any deceased son or daughter to the parents share."
Counsel for the complainants has stated the questions in which the opinion of the court is desired as follows:
"(1) Hid the shares of any of the children in the corpus and/or income vest in them as of the death of the testator, or was such interest contingent upon their surviving the life tenant or surviving by five years the life tenant?"
It is undoubtedly the rule of law that, unless a contrary intention is shown in the will, legacies should be held to be vested rather than contingent. The latest cases on this point are: In re Buzby Estate (N. J. Err. & App.) 118 Atl. 835, and American Builders' Corporation v. Thomas S. Galligan, 121 Atl. 595, decided recently by the Court of Appeals, and which has not yet been [officially] reported; also, Redman v. Gummere (N. J. Err. & App.) 119 Atl. 631. There is nothing in this will that clearly indicates the intention of the testator to make these shares contingent, and I therefore find that they vested as of the time of the death of the testator. The second question:
"If such shares vested in the children as of the death of the testator, were such shares subject to be divested at any time by any event?"
Paragraph 7 disposes of the income and not the principal for the five-year period immediately succeeding the death of the testator's widow, with a divestiture clause as to income in favor of the children of a deceased son or daughter. Paragraph 8 relates exclusively to the principal and provides for its distribution at the end of the five-year period. There is no divestiture clause in respect to five of the six shares of the principal. Part of paragraph 8 relates to the distributon of the remaining one-sixth share to be held in trust for the benefit of testator's daughter, Mathilde Woodman. There is a divestiture clause as to this one-sixth share.
As to the principal of five of the six shares, the principal vested in right, and inasmuch as there is no divestiture clause in respect to principal, the testator's children who were alive at the testator's death had a vested indefea sable estate each in the principal of his one-sixth part.
In respect to the sixth share, which under paragraph 8 was directed-to be held in trust for Mathilde Woodman during her lifetime, she to receive the income therefrom during her life, and after her death the executor "to divide the principal," etc., this vested right to principal of this share was subject to being defeated by the death of any of the said five named children, leaving child or children surviving, prior to the death of Mathilde Woodman, the life tenant.
The third question:
"If subject to being divested (a) by the occurrence of what event were they to be divested and (b) when must such event occur in order to work a divestiture?"
As to income under paragraph 7, the income for the five years vested in the named children as of the testator's death; nevertheless by reason of the clause "the child or children of any deceased son or daughter to take the parent's share," each of such shares was subject to be divested by the death of the child prior to the period of distribution, first, by the death of the child; second, leaving child or children; third, death of the child withinthe time contemplated by the will for the operation of such divestiture clause. The fourth question:
"Are any of the shares of income and/or corpus of the estate presently distributable, and, if so, which one, to whom, and in what proportions?"
The answer to this question is, I think, that as to the shares of the five children of the testator, except Mathilde, such shares are now vested both as principal and income, and are therefore presently distributable. The principal of Mathilde Woodman's share vests, as of testator's death, in his five remaining children, subject to be divested as to such of them as might die during the lifetime of Mathilde Woodman leaving child or children surviving. The enjoyment of the principal was postponed until, first, the death of the testator's widow, and, second, the death of Mathilde Woodman. Inasmuch as Mathilde died in the lifetime of the testator's widow, this said one-sixth share of the principal is presently distributable. I do not think that the period of distribution of the income is postponed until the expiration of the five years, but is distributable as the same from time to time accrued.
As to the application of the foregoing principles to the facts in the case, I think it should be as follows:
(1) The six parts of principal of the entire estate are now indefeasably vested in the following persons: A one-sixth part thereof in Mrs. Eliese Ohliger; a one-sixth part thereof in Mrs. Auguste Wntzeel: a one-sixth part thereof in Mrs. Anna Seibert; a one-sixth part thereof in D. Frederick Burnett and Elizabeth Lawrenz Witschief, as executors and trustees under the last will and testament of Charles Lawrenz, Jr., deceased; a one-sixth part thereof in D. Frederick Burnett, as administrator with the will annexed of Hedwig Bock, deceased. The remaining one-sixth part is Indefeasably vested equally in Mrs. Eliese Ohliger, Mrs. Auguste Wentzel, Mrs. Anna Seibert, D. Frederick Burnett, and Elizabeth Lawrenz Witschief, as executors and trustees under the last will and testament of Charles Lawrenz, Jr., deceased, and in D. Frederick Burnett, as administrator with the will annexed of Hedwig Bock, deceased, she having survived testator and Mathilde Woodman.
(2) (a) Mrs. Eliese Ohliger, Mrs. Auguste Wentzel, and Mrs. Anna Seibert, from the date of death of Mrs. Mathilde Lawrenz (testator's widow) and until the expiration of the five-year period, or until they die, whichever first occurs, are each entitled to the net income on their respective one-sixth share. If before the expiration of the five-year period any of these three children die, the income on their respective shares passes by intestacy or by will, provided they die without leaving child or children surviving. If they die leaving child or children surviving, then the income for the balance of Said five-year period vests indefeasably in such child or children as of the death of their respective parents, (b) D. Frederick Burnett and Elizabeth Lawrenz Witschief, as executors and trustees under the last will and testament of Charles Lawrenz, Jr., deceased, having a vested indefeasable ownership in both the principal and the income since the death of Mrs. Mathilde, Lawrenz, the life tenant, of one-sixth part of the estate, therefore are entitled to its immediate possession and enjoyment, (c) Inasmuch as Mrs. Hedwig Bock died during the lifetime of the life tenant, Mrs. Mathilde Lawrenz, leaving three children her surviving, it follows that said three children of Hedwig Bock, from the date of death of said life tenant, Mrs. Mathilde Lawrenz, have a vested, indefeasable ownership in the income of one-sixth share of said testator's estate, until the expiration of said five-year period following the death of the life tenant, Mrs. Mathilde Lawrenz.